Delegated Legislation In India

Coverage of this article

• Key Takeaways
• Introduction
• Evolution of delegated legislation in India 
• Types of delegated legislation
• Special Delegated Legislation/Henry VIII Clause
• Reasons for the Growth of delegated legislation
• Advantages of delegated legislation
• Disadvantages of delegated legislation
• Safeguards
• Constitutional validity of delegated legislation in India 
• Conclusion

KEY TAKEAWAYS 

• The term 'delegated legislation' refers to the exercise of legislative power by an agent with a lesser status than or subordinate to the Legislature.
• Parliament's enabling or parent Act defines the framework or parameters within which delegated legislation is made.
• Delegated legislation includes things like rules, regulations, and bylaws.

INTRODUCTION 

Delegated legislation refers to a procedure in which the legislative body transfers its legislative authority to the administrative body, which then uses that authority to create laws or other legislative instruments like regulations, notifications, orders, etc. It is also referred to as subordinate legislation because the administrative authority serves as the legislature's assistant.

Delegated legislation is also defined as an instrument of legislative nature created by an authority in the exercise of legislative power. Salmond defined delegated legislation as legislation that originates from a source other than the sovereign power and is thus dependent on some superior or supreme authority for its continuous existence and validity. For example, the Environment Protection Legislation of 1986 gives the central government the authority to adopt laws to implement the legislation. To exercise these rights, the central government enacted the Environment Protection Rules in 1986. This is referred to as delegated legislation.

Evolution of delegated legislation in India 

Delegated laws in India can be traced back to pre-independence times. Until 1949, the Privy Council was the highest Court of Appeal, hearing Indian appeals. It used the theory of conditional legislation to meet administrative demands and gave the Indian legislative a subordinate standing. 

The privy council did not apply the adage "delegates nonpotest delegate" in Queen v. Burah because the power had been curtailed by an act of the British Parliament.

However, after independence, the position shifted. The question of delegated legislation was brought before the Supreme Court in the case of Jatindra Nath Gupta v. Province of Bihar, and the Supreme Court finally issued its verdict in the case of re Delhi Laws Act, 1912. All of these viewpoints agreed on one point: parliament and state legislatures have the authority to assign legislative authority. However, there were disparities in the scope of their delegation authority. While one school of thought held that the legislature should not delegate its essential function of making laws or rules and should instead establish guidelines and policies in the parent act, another held that delegation of legislative power should be permitted to any extent as long as the legislature did not retire from its legislative function. The court agreed with the earlier viewpoint, which stated that the legislative policy or norm should be clearly stated in the parent statute.

TYPES OF DELEGATED LEGISLATION

There are two types of delegated legislation:

Normal Delegated Legislation–

As the name implies, this delegation does not deal with policy, taxation, or repealing, amending, or repealing constitutional or statutory laws. There are two forms of this:

Positive legislation- 

This entails legislation granting the administration the authority to create laws and establish the rules and regulations by which the administration will operate. As a result, it is adequately defined.

Negative delegated legislation- The administration is also informed of some areas where it is prohibited from adopting laws.

Special Delegated Legislation/Henry VIII Clause: –

There are no areas or constraints on legislative administrations here. This is also Outstanding Delegated Legislation.

The 'Henry VIII Clause' refers to an act that assigned legislative authority to change acts of Parliament, either the Act under which the powers were delegated or other acts.

Reasons for the Growth of delegated legislation

Pressure upon a parliamentary time– 

Due to the volume of legislative activity, the legislature cannot devote adequate time to discussing all subjects in detail; hence, the legislature delegated authority to executives to fill in the gaps by issuing required rules, orders, and so on on the legislature's behalf.

In the case of Ravinder Singh v. State of Punjab, the court stated that if 525 lawmakers focus on every minute legislative detail, leaving nothing to subordinate agencies, the annual output may be disappointing and minimal.

Technicality- 

Technical issues may occur from time to time, necessitating the need for legislation. Because the legislature is made up of ordinary people, it cannot be expected to know everything. As a result, the services of professionals are necessary. In such a circumstance, the experts can be given legislative authority.

Flexibility- 

Future contingencies/situations cannot be predicted at the time law is passed. And, in the future, certain situations may necessitate legislation through revisions. A legislative amendment is a time-consuming and labor-intensive process. As a result, this procedure can be handed to executives who can meet the situational requirements quickly.

Experiments- 

Executives can experiment thanks to delegated law. This strategy allows for the rapid application of expertise and the implementation of essential improvements.

In the event of an emergency, such as a pandemic, epidemic, or flood, it is not possible to wait for the government to approve the legislation. As a result, the executive is granted the authority to adopt rules, by-laws, and so on since they can do so quickly.

For example- The administrative wing designated pandemic masks and sanitizers to be essential commodities under the Essential Commodities Act.

ADVANTAGES OF DELEGATED LEGISLATION

• It saves parliamentary time without jeopardizing its overall responsibilities.
• It promotes adaptability.
• It enables the use of specialist knowledge.
• Because officials are in the middle of the scenario in which the law operates, they are most prepared to provide specifics intended to achieve the statutory goal.
• The executive's rulemaking authority allows for the comfort of affected interests. It is now possible to make real changes in policy implementation to accommodate popular desires.
• Parliament does not always meet. As a result, an executive should be adequately enabled to deal with emergencies.

DISADVANTAGES OF DELEGATED LEGISLATION

It has sparked moral fear, prompting some intellectuals to associate it with a virtual rejection of democracy.

The following are the main objections leveled toward the system:

• In their eagerness to "get things done," officials are prone to disregard popular will.
• Sometimes, things of critical importance, such as policy, are delegated to the executive. This is unacceptable.
• It may result in the legislature having less control and significance over CEOs.
• In the name of technical lawmaking by the executive, basic or those that can be produced by the legislature are sometimes passed on.

SAFEGUARDS

Because delegated legislation is an unavoidable evil. As a result, some safeguards and control are both required and desirable.

• The enabling statutes should properly clarify the limits of the executive's legislative power.
• The court's jurisdiction should not be limited.
• Parliamentary oversight and control should be reinforced.
• All regulations should include explanatory remarks.
• Outside interests that are directly affected by the proposed exercise of rule-making powers should be consulted by the departments.

CONSTITUTIONAL VALIDITY OF DELEGATED LEGISLATION IN INDIA 

The Indian Constitution empowers the legislature to delegate its tasks to other authorities and to formulate policies to carry out the laws it passes. The Supreme Court ruled in D. S. Gerewal v. State of Punjab that Article 312 of the Indian Constitution addresses the powers of delegated legislation. "There is nothing in the words of Article 312 that takes away the usual power of delegation, which ordinarily resides in the legislature," Justice K.N. Wanchoo remarked.

The term "Parliament may by law provide" in Article 312 should not be construed as implying that there is no possibility for delegation in law passed under Article 312. The legislation of England allows the Parliament to transfer an unlimited number of functions. In America, however, Congress, like India, can only delegate some of its responsibilities. As a result, it does not have unlimited or uncontrollable powers. Thus, India permits delegated legislation, but only in a defined and controlled manner, with particular constraints.

The president of India referred to the Supreme Court in the Re Delhi Laws Act, of 1912, which was heard by a panel of seven judges, each of whom authored a distinct opinion. The central issue before the court was the legality of the Part C State (Laws) Act of 1950. In this momentous ruling, the Supreme Court gives its permission to delegate legislation while also establishing its permissible boundaries.

According to Maharashtra State Board of Secondary and Higher Education v Panitosh Bhupesh Kumar Seth, the Legislature and its delegate should consider how the contents of a statute can be best executed and what substantive and procedural procedures must be integrated. Jahan Singh v. Vice-Chancellor, M D University, Rohtak Administrative power cannot grant delegated legislation retroactive effect if the law does not allow it.

CONCLUSION 

Delegated legislation refers to rules of law enacted under the authority of an Act of Parliament. Even though the lawmaking body has the authority to make laws, it may transfer such authority to other entities or individuals by a resolution. The Enabling Act is the resolution that delegated such authority. The Enabling Act establishes the broad guidelines and specific principles established by the authorized authority.